WENTWORTH v WENTWORTH SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL COLE JA 4 September 1995, 7 September 1995 [1995] NSWCA 504 Perceived bias-application of principles in Livesey v NSW Bar Association (1983) 151 CLR 288. Cole JA On 24 August 1995 Powell JA, Giles AJA and I delivered reasons for judgment in matter number 40361 of 1994 being an appeal and cross-appeal by Miss Wentworth and Mr Wentworth from a decision of Santow J making further provision for Miss Wentworth pursuant to s8 Family Provision Act 1982 from the estate of her late father Each of the three judges who sat on that appeal reached a decision unfavourable to Miss Wentworth. Formal orders remain to be made in that appeal and the issue of costs has not been resolved. Accordingly I remain part-heard in that matter. Before me on 4 September 1995 were two matters Pursuant to orders made by Powell JA on 21 August 1995 there was listed before a Judge of Appeal, as it turned out me, the motion upon which Powell JA had made an order staying a writ of execution on an order for costs provided Mr Wentworth paid to the Registrar security in the sum of $200,000 within fourteen days of 21 August 1995 or such longer time as a Judge of Appeal may allow. Mr Wentworth was seeking an extension of that time for providing that security upon the basis that the stay of writ of execution continued. The second matter was a notice of motion by Miss Wentworth seeking expedition of the hearing of appeals in matters numbered 40374 of 1995 and 40377 of 1995. When those matters were called on before me, Miss Wentworth made application that I not sit on either matter or, as I understood it, any future matter involving Miss Wentworth. The basis of the application was both established bias and reasonable apprehension of bias. I reserved on that application. The principal submission put by Miss Wentworth was that the terms of the judgment delivered by me on 24 August 1995 "bore out the apprehension" of bias that Miss Wentworth had had in seeking that I disqualify myself from sitting on the appeal when it was heard in November 1994 I gave reasons on 9 November 1994 why I then declined to disqualify myself for apprehended bias. Those reasons were recorded and I do not repeat them!. I shall endeavour to summarise the bases advanced by Miss Wentworth as to why I should now disqualify myself from any further proceedings in which she is involved. The matters which she raised were the following: 1. I should have stood down from the appeal in November 1994. I have already addressed that matter. 1. See transcript in proceedings number 40361/94, 9 November 1994, at 9-10. 2 UNREPORTED JUDGMENTS 2. I had refused to have "the slightest regard to the terms of the statute in its proper construction as spelt out by the High Court in Singer v Berghouse2". It is inappropriate that I comment upon this. I expressed my view of the facts and the law in my judgment. If I have wrongly expressed the law that may give rise to appealable error but it does not establish bias or any reasonable perception of bias within the meaning of the authorities. 3. I "ignored the principles set out in the Court of Appeal in Permanent Trustee Co Ltd v Fraser Court of Appeal, 24 February 1995."3 A similar comment to that made in respect of the previous ground is apposite. 4. In the judgment delivered by me I "made statements about proper provision" being a finding that provision of "$100,000 out of a notional estate of $9 million constitutes proper provision". This was said to demonstrate "actual bias"4. My findings "could properly be characterised as unjudicial. They were not based on matters before the court. Further, it appears your Honour has taken into account matters not before your Honour and clearly the subject of discussions with Mr Nicholas and Mr Wentworth." The findings made by me were said have been based on "personal discussions you have had with Mr Nicholas or Mr Wentworth and I assume your Honour adds into that WC Wentworth."6 The basis upon which this quite extraordinary submission was made that I, being a Judge of the Court of AppeaL would have had private discussions with counsel for Miss Wentworth's opponent, with her opponent or with Mr WC Wentworth, the latter two of whom I have never met, was, as best I could distil it, four findings which I made in the judgment I delivered. They were: "(a) Miss Wentworth had entirely destroyed her relationship with ha father, the testator over a number of years prior to his death."7 (b) She (Miss Wentworth) had sued him, successfully".8 (c) She had made awful allegations of impropriety against him. She had written him two letters in terms which were destructively hurtful, a fact that Miss Wentworth must have recognised."9 (d) Were I to have regard afresh to the factors of the size of the estate, the needs of Miss Wentworth, the proper expectations of the defendant, Miss Wentworth's financial position, the claims of the defendant upon the deceased, and the relationship between Miss Wentworth and the testator I would be of the same view. For my part, I would not have accepted, as Bryson J and the Court of Appeal did, that a familial relationship in some fashion enables one to diminish the attitude of, conduct of and writings by Miss Wentworth to her father. She accused him of criminal conspiracy, wrote to him in 1988 that he was "a disgrace to the human race, utterly amoral, and totally corrupt. You always have been", and suggested that he do "one moral, honest act in your life, in expurgation of a lifetime of corruption and lies". In my view, her conduct over the years preceding the testator's death, and in particular the writing of the two letters to which I have referred coupled with her making complaints causing her father to be questioned regarding whether he had engaged in a conspiracy at a time not long before his death, so Transcript, 4 September 1995, at 1 Transcript, 4 September 1995, at 2 Transcript, 4 September 1995, at 2-3. Transcript, 4 September 1995, at 3 Transcript, 4 September 1995, at 3 Judgment, 24 August 1995, at 28. Judgment, 24 August 1995, at 28 Judgment, 24 August 1995, at 28. CPN AMRWN URJ WENTWORTH v WENTWORTH (Cole JA) 3 destroyed any relationship which she might have had with her father that she surrendered any claim upon his bounty."!0° As to (a), Miss Wentworth submitted that I could not have reached that finding "unless it is the subject of private discussions" and further that "a Court of Appeal with no further evidence before it is not entitled, with respect, to make a different determination because your Honour feels like it and we would say that is an example, clearly, of your Honour having taken a particular view of the matter, having taken, perhaps, a personal view of the matter which we would say would indicate to any reasonable person that the matter before the Court would suffer from the problems which are raised currently before you."!! Regarding (b) above Miss Wentworth submitted that there was no evidence before the Court whether she had sued Mr Wentworth successfully or otherwise. She put: "T know you know that from personal discussions but, with respect, that was not before you,"!2 Regarding (c) above Miss Wentworth submitted that there was no evidence before me to enable me to draw the conclusion that she must have recognised that the two letters to which I referred in the judgment were destructively hurtful to her relationship with her father. Regarding (d) it was submitted that there was no evidence of the matters referred to and further that: "Your Honour has totally misconceived his function and with the intent to justify a situation you Honour wishes to contend for, that a provision shouldn't be made in excess of $100,000, that appears to be done for the purposes of protecting Mr Fitzwilliam Wentworth's particular financial problems." I record that I have never had any discussions, public or private, with Mr Nicholas QC, Mr Wentworth or Mr WC Wentworth regarding this matter. I have never met the latter two gentlemen. Regarding Miss Wentworth's submission that there was no material before me sufficient to entitle me to reach the conclusions I did in (a) to (d) inclusive above, it is inappropriate that, in this judgment, I expand upon any evidentiary basis for the findings which I there made. That is so because Miss Wentworth may wish to raise the asserted absence of material to ground the findings I made, as a ground of application for leave to appeal, or if it were granted appeal It is sufficient for me to say that in the appeal before me, as the index to the appeal book makes clear, the exhibits placed before the Court included Exhibit PX4 comprising fifteen volumes of material in prior proceedings which, with other material placed before the Court of Appeal, in my opinion both grounded and supported the findings of fact which I made and to which I have referred in (a) to (d) inclusive above. 5. The finding which I made that there had been "no substantial detrimental change" was contrary to the evidence and I had not given any substantial reason for the view I expressed!3. If either of these submissions be correct they may ground an application for leave to appeal or an appeal. Error of law, however, does not establish bias. 10. Judgment, 24 August 1995, at 30. 11. Transcript, 4 September 1995, at 3 12. Transcript, 4 September 1995, at 3 13. Transcript 4 September 1995, at 5 4 UNREPORTED JUDGMENTS It is interesting to note that Miss Wentworth submitted that Powell JA, who reached a similar view was also said to be biased but that Giles AJA, who also reached a similar view, was said simply to have "misunderstood the language of the statute in its entirety"!4. It follows that there is no factual material placed before me at all which could justify a finding of bias, based either upon the judgment I delivered on 24 August 1995, or Miss Wentworth's unfounded and unsubstantiated allegations from the bar table that I had had private discussions with the persons she mentioned, or that the findings which I made were made to sustain a personal, as distinct from a judicial, view which I held not based upon the evidence and submissions, or that I made the findings "for the purpose of protecting Mr Fitzwilliam's particular financial problems". T accordingly reject the submission either that I am biased or that the judgment demonstrates bias. The ground of bias asserted has thus not been established. There remains, however, the allegation of perceived bias. Miss Wentworth submitted, in relation to the judgment which I delivered: "T think it is a nonsense. I think it is the judgment of a biased judge, infected with personal knowledge of matters which were not before the Court." Since the decision of the High Court in Livesey v NSW Bar Association!5, which established the principle: "That a judge should not sit to hear a case if in all the circumstances the parties or the public MIGHT entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it."16 (emphasis added), it seems to me that where a litigant, particularly a litigant in person, puts to the Court the submission that that litigant, as a party, because of a past finding of the judge, perceives the judge to be biased, a judge has little, if any, alternative but to disqualify himself To do otherwise the judge must be able to say, not that the apprehension asserted by the litigant was unreasonable, but rather that ANY such apprehension as the litigant may hold would be unreasonable. If a judge has previously given a decision which is either critical of the character, or integrity, or some aspect of the truthfulness of a party, or has reached a conclusion contrary to that party's interest then, so it seems to me, it would be rare that a judge could say that he was satisfied to the degree of certainty required to extinguish the possibility that a litigant MIGHT entertain reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to further litigation of an issue involving that litigant. This flows from the use of the word "might" in the test laid down by the High Court. The exercise the judge hearing the application must undertake becomes circular. If the litigant says he or she entertains a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of a questions the judge can either believe or disbelieve that litigant. The assertion is not in practice tested by evidence or cross-examination. If he believes the litigant, he must disqualify himself. If he does not believe the litigant, then he is reflecting upon the litigant's credit and, having done so, would have necessarily to accept that that litigant might entertain in the future a reasonable apprehension that the judge would not bring an impartial and unprejudiced mind to the resolution of 14. Transcript, 4 September 1995, at 5. 15. (1983) 151 CLR 288. 16. (1983) 161 CLR 288 at 293-294. URJ WENTWORTH v WENTWORTH (Cole JA) 5 litigation. That would be so even though the asserted apprehension was, to the mind of any reasonable or fair minded observer quite unreasonable. The views which I have expressed seem to me to reflect the approach of the majority of the Court of Appeal in Australian National Industries Ltd v Spedley Securities Ltd (In Liquidation)!7, a decision binding upon me. As I have, in the judgment of 24 August 1995, reached a decision contrary to the interests of Miss Wentworth, and as I am unable to say that, in consequence, she might not hold an apprehension that I might not bring and impartial and unprejudiced mind to the resolution of future litigation in which she is involved, and as I am unable to say that, at least from her point of view, although not in my view from the position of a reasonable observer, such a view if so held by her was unreasonable in accordance with the decision in Livesey, and Australian National Industries I will decline in future to sit on matters in which she is a litigant. Thus I join Kirby P, Mahoney JA, Meagher JA and Powell JA as being persons to whom Miss Wentworth has objected on grounds of perceived bias, to which tally must be added Sheller JA who declines to sit in matters in which she is involved Three Judges of Appeal remain. One begins to have some reservations regarding an expression of a principle of the law the application of which results in the majority of the State's Judges of Appeal being disqualified for perceived bias. Cole JA disqualified himself from hearing any further matters involving Miss Wentworth. COUNSEL: Appellant: In person Respondent: GC Lindsay SC SOLICITORS: Appellant: Russo and Partners Respondent: Dunhill Madden Butler 17. (1992) 26 NSWLR 441